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Govindji Khera v. Padma Bhatia .
Concise Analytical Summary of the Opinion
Factual and Procedural Background
The respondent-landlord applied to evict the appellant-tenant under provisos (b) and (h) to Section 14(1) of the Delhi Rent Control Act, 1958. The contemporaneous factual finding by the Controller and the Rent Control Tribunal was that the tenant's father had been residing with the tenant from the inception of the tenancy and was dependent on him. In 1961 the tenant was transferred to Jabalpur and went to live there in a residence allotted to or acquired by him, leaving his father in charge of the Delhi premises.
The Controller dismissed the landlord's eviction application, finding neither proviso (b) (subletting/parting with possession) nor proviso (h) (acquisition of another residence) was made out. On appeal the Rent Control Tribunal agreed that proviso (b) did not apply but allowed eviction under proviso (h), holding that acquisition of a residence at Jabalpur entitled eviction. The present second appeal challenges that conclusion. The unanimous factual finding that the father was living with the tenant from the inception of the tenancy was not challenged on appeal.
Legal Issues Presented
- Whether the landlord was entitled to evict the tenant under proviso (b) to Section 14(1) (subletting, assignment or parting with possession) where the tenant's father, a member of the tenant's family, continued to occupy the premises.
- Whether the landlord was entitled to evict the tenant under proviso (d) (six months' non-residence by tenant or any member of his family prior to application) where the tenant's father continued to reside in the premises.
- Whether the landlord was entitled to evict the tenant under proviso (h) to Section 14(1) because the tenant had moved to and occupied a residence at Jabalpur (i.e., whether acquisition of that residence forfeited the protection afforded by the Act).
Arguments of the Parties
Landlord's Position
- The landlord sought eviction initially on two grounds expressly invoked in the application: proviso (b) (that the tenant had sublet, assigned or otherwise parted with possession) and proviso (h) (that the tenant had acquired another residence and therefore forfeited statutory protection).
- At least implicitly, the landlord relied on the tenant's transfer to Jabalpur and occupation of a residence there as the factual basis for invoking proviso (h).
Tenant's (Appellant's) Position
- The tenant's position, as accepted by the Controller and not challenged on appeal, was that the tenant's father was a member of the tenant's family, had been residing in the premises from the inception of the tenancy, and was dependent on the tenant; accordingly, no subletting, assignment or parting with possession (proviso (b)) had occurred because the father occupied the premises on behalf of the tenant.
- Further, because a member of the tenant's family continued to occupy the premises, the acquisition of another residence by the tenant (in Jabalpur) did not automatically forfeit the tenant's statutory protection under the Act (i.e., proviso (h) should not apply where family occupancy continues).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| B. Dev v. Dr. Amar Chand Narula, 1971 Ren CR 363 (Delhi) | Definition and treatment of the concept of "family" in tenancy context; a father who resides with the tenant is to be considered a member of his family. | The Court relied on this authority to conclude that the tenant's father was a member of the family and thus in possession on behalf of the tenant; consequently proviso (b) was not attracted. |
| Budh Ram v. Banwari Lal, S.A.O No. 33 of 1967 (decided 6-4-1971, Delhi) (V.D. Misra, J.) | Expressed the view that acquisition of a residence outside Delhi would not be governed by proviso (h) to Section 14(1). | The Court cited this view to acknowledge that, ordinarily, a new residence outside Delhi may not attract proviso (h), while also noting that exceptional cases may exist. |
| Kishan Chand Bhargava v. Hari Hari Nath Rastogi, Civil Revn. No. 303-D of 1958 (decided 31-10-1961, Punj) (Dulat, J.) | Holds that acquisition of a residence outside Delhi may attract proviso (h) in particular facts where the tenant leaves Delhi for good and leaves no family member occupying the premises. | The Court relied on this case as an example of circumstances in which proviso (h) would be attracted even when the new residence is outside Delhi, and distinguished those facts from the present case. |
| K.V. Singh v. Smt. Ramkali, S.A.O No. 67 of 1968 (decided 10-3-1969, Delhi) | Similar principle: acquisition of a residence outside Delhi can attract proviso (h) where the tenant leaves Delhi for good without leaving a family member in occupation. | The Court cited and relied on this decision to show precedent where proviso (h) applied despite the new residence being outside Delhi; used to contrast with the present case where a family member continued occupation. |
Court's Reasoning and Analysis
The Court analysed three provisos to Section 14(1) (identified in the opinion as (b), (d) and (h), with textual reference to (c) in the discussion) to determine whether any justified eviction given the undisputed fact that the tenant's father continued to occupy the premises.
1. Proviso (b) — subletting/assignment/parting with possession:
- The Court emphasised that proviso (b) is attracted only where the tenant has sublet, assigned or otherwise parted with possession so that possession vests in another in his own right.
- The Court reasoned that a family member (here, the father) who resides in the premises is in possession on behalf of the tenant as part of the tenant's family; no legal transaction of subletting, assignment or parting with possession has occurred between the tenant and such a family member.
- Relying on B. Dev v. Dr. Amar Chand Narula, the Court held that a father residing with the tenant should be treated as a member of the tenant's family when he is dependent and living with the tenant; therefore proviso (b) did not apply in this case.
2. Proviso (d) — six months' non-residence by tenant or any member of his family prior to eviction application:
- The Court stated that for proviso (d) to apply the landlord must show that the premises let for use as a residence were not occupied by the tenant nor by any member of his family for six months prior to the eviction application.
- Because the tenant's father, a member of the family, had continuously resided in the premises before and after the tenant's departure, proviso (d) could not be invoked. The Court noted that proviso protections extend to family members, and that the landlord had not even pleaded proviso (d) in the application, apparently because the landlord knew the father was a family member.
- Thus proviso (d) did not assist the landlord.
3. Proviso (h) — acquisition by the tenant of another residence:
- The Court described proviso (h) as turning on the meaning of the word “residence.” The acquisition must be of premises capable of being used or actually used as a residence, and it must be such that by its acquisition the tenant forfeits the protection afforded by the Act because occupation of the disputed premises becomes unnecessary for the tenant's needs.
- The Court observed that ordinarily a new residence likely to forfeit protection will be inside Delhi, because only another nearby residence typically removes the tenant's need to remain in the old premises. However, the Court recognised that in exceptional cases a residence outside Delhi could have the same effect (for example, where the new residence is just outside Delhi's boundary and fully serves the tenant's need previously met by the Delhi premises).
- The Court examined relevant precedents (Budh Ram; Kishan Chand Bhargava; K.V. Singh) and concluded that those decisions which attracted proviso (h) for residences outside Delhi did so because the tenants had left Delhi for good and had left no family member in occupation—facts materially different from the present case.
- The Court's analytic pivot was that when a member of the tenant's family continues to occupy the disputed premises, that ongoing occupation demonstrates that the tenant still has a need for the premises; therefore the acquisition of another residence by the tenant does not, as a matter of course, forfeit statutory protection under proviso (h).
- Applying this framework to the present facts, the Court found that proviso (h) was not attracted because the tenant's father continued to occupy the Delhi premises on the tenant's behalf, proving the tenant's continuing need to occupy them.
The Court thus treated the question as primarily one of functional equivalence: only where the newly acquired residence fully satisfies the tenant's need so that occupation of the disputed premises is unnecessary will proviso (h) be engaged; whether the new residence is inside or outside Delhi is secondary and depends on factual circumstances.
Holding and Implications
Core Ruling: Appeal allowed; the order of the Rent Control Tribunal is set aside and the Controller's order dismissing the landlord's petition for eviction is restored.
Direct consequences for the parties:
- The eviction order previously granted by the Rent Control Tribunal is vacated.
- The landlord's application for eviction is dismissed as having failed to establish entitlement under any of the considered provisos to Section 14(1) on the undisputed facts (notably, the continued occupation of the premises by the tenant's father).
- There is no order as to costs.
Broader implications:
This opinion emphasises that (i) a family member's occupation of premises is possession on behalf of the tenant (relevant to proviso (b)); (ii) the statutory protection extends to family members such that proviso (d) cannot be invoked where a family member continues to reside; and (iii) proviso (h) depends on whether the newly acquired residence removes the tenant's need to occupy the original premises — not solely on the geographical location of the new residence. The opinion does not assert that it creates a novel legal rule beyond applying these principles to the facts; it confines itself to the direct effect on the parties and distinguishes prior decisions on their facts.
Disposition: Appeal allowed.
1. The eviction of the appellant-tenant was sought by the respondent-landlord initially on two grounds, namely, those embodied in provisos (b), (h) to Section 14(1) of the Delhi Rent Control Act, 1958. The finding of fact by both the Controller and the Rent Control Tribunal was that the father of the tenant was residing with him as a member of the family of the tenant from the inception of the tenancy. In 1961, the tenant was transferred to Jabalpur and left the premises at Delhi in charge of his father and went to Jabalpur where he occupied a residence allotted to him by the Government.
2. The Controller negatived both the grounds urged by the landlord for the eviction of the tenant. He held that the father of the tenant being a member of the tenancy family it could not be said that the tenant had either sublet or parted with the possession of the premises in his favour within the meaning of proviso (b) to Section 14(1). He also held that the acquisition of a residence by the tenant outside the Union territory or Delhi was not sufficient to attract proviso (h) to Section 14(1). The Controller dismissed the application of the landlord for the eviction.
3. The Rent Control Tribunal in the appeal filed by the landlord upheld the decision of the Controller that the landlord was not entitled to evict the tenant under proviso (b) to Section 14(1) but disagreed with the Controller and held that the landlord was entitled to evict the tenant under proviso (h) to Section 14(1) even if a residence acquired by the tenant was at Jabalpur outside Delhi. He therefore, passed an order of eviction in favour of the landlord. In this Second appeal the finding of fact by both the Controller and the Rent Control Tribunal that the father of the tenant was living with the tenant from the inception of the tenancy was not challenged before me. The sole question for decision, therefore, is whether the departure of the tenant from Delhi to Jabalpur where he occupied another residence entitled the landlord to evict the tenant under any of the proviso to Section 14(1) even if the father of the tenant continues to be in possession of the premises at Delhi.
4. Three possible provisos to Section 14(1) may be considered to sustain the claim of the landlord in this respect.
5. Proviso (b) to Section 14(1) is attracted when the tenant sublets, assigns or otherwise parts with the possession of the premises without obtaining the consent in writing of the landlord. The subletting, assignment or parting with possession by the tenant implies that the tenant no longer continues to be in possession of the premises. The possession of the premises would be with a person who comes into possession in his own right on the strength of the subletting, assignment or parting with possession by the tenant. These concepts do not apply to the father of the tenant living in the premises as a member of the family and dependent on the tenant. A member of the family is in possession on behalf of the tenant as a part of his family. No legal transaction of subletting, assignment or parting with possession has taken place between him and the tenant. The concept of family was considered by me in B. Dev v. Dr. Amar Chand Narula, 1971 Ren CR 363 (Delhi). A father being a very near relation of the tenant should be considered to be a member of his family provided that he was residing with the tenant. In this case, the father was not only residing with the tenant from the inception of the tenancy but was also dependent on him. The father in this case was, therefore, a member of the family and he was in possession of the premises on behalf of the tenant as a member of his family. Proviso (b) to Section 14(1) is. not, therefore, attracted to this case.
6. For the application of proviso (d) to Section 14(1) it is necessary tor the landlord to prove that the premises let for use as a residence were let for use as residence and neither the tenant nor any member of his family has been residing therein for a period of six months prior to the application for eviction. We have a ready seen above that the father of the tenant was a member of his family and he has been continuously residing in the premises from before and after the departure of the tenant from Delhi for Jabalpur. Prima facie it may seem strange that the tenant has gone to Jabalpur now for tea years and yet he is occupying the premises in his possession through his father who is a member of his family. But Proviso (c) does not contemplate that on the simple departure of the tenant from the premises the landlord should be entitled to evict the tenant. For, every person has ordinarily a family to maintain in a house. Proviso (c) therefore, protects the possession of the members of the family of the tenant over the premises even after the departure of the tenant. It is apparently the intention of the Legislature in proviso (d) that the family of the tenant should receive the same protection from eviction as the tenant himself. No distinction between the two has been made as far as proviso (c) is concerned. It is only if the landlord had succeeded in the present case in showing that the father of the tenant was not a member of the tenant's family that he could have succeeded in evicting the tenant under this proviso. Apparently, the landlord was aware that the father of the tenant was a member of the tenants family. He did not, therefore, even plead in application for the eviction of the tenant that proviso (d) was attracted to this case.
7. In view of the above, the real question for decision in this appeal is whether the respondent landlord was entitled to evict the appellant-tenant under provisio (h) to Section 14(1), namely because the tenant was transferred from Delhi to Jabalpur and has gone to live at Jabalpur in a residence acquired by him or allotted to him there. It needs to be stressed that the essence of proviso (h) is the acquisition by the tenant of a residence other than premises in dispute. Everything, therefore depends on the meaning to be attached to the word “residence.” Firstly, it must mean that the new acquisition was either capable of being used as a residence or was actually used as a residence by the tenant Secondly, the new residence must be such that by its acquisition the protection afforced to the tenant against eviction by the Act is forfeited. Only such residence would forfeit the protection as would make the occupation of the premises by the tenant unnecessary for the purpose of the Act. In Budh Ram v. Banwari Lal, S.A.O No. 33 of 1967 decided on 6-4-1971 (Delhi), V.D Misra, J. expressed the view that the acquisition or a residence outside Delhi would not be governed by proviso (h). It is true that in the majority of cases the new residence would have to be in Delhi to attract proviso (h). For, ordinarily it is only another residence in Delhi which would make it unnecessary for the Act to protect the possession of the tenant over the premises in dispute. I would respectfully point out however, that in exceptional cases even a residence outside Delhi would be covered by proviso (h). For instance, if the premises occupied by the tenant are just inside the boundary of Delhi and the new residence acquired by him is just outside the boundary of Delhi then the new residence would fully serve the need of the tenant to occupy the premises. It would perhaps be, therefore, more correct to say that proviso (h) would be attracted by the acquisition of such residence by the tenant as would serve the same need as is presently served by the occupation of the premises by the tenant irrespective of the question whether the new residence is inside Delhi or not.
8. In Kishan Chand Bhargava v. Hari Hari Nath Rastogi, Civil Revn. No. 303-D of 1958 decided on 31-10-1961 (Punj) by Dulat, J. and in K.V Singh v. Smt. Ramkali, S.A.O No. 67 of 1968 decided on 10-3-1969 (Delhi) by me, the acquisition of a residence even outside Delhi was held to attract proviso (h) to Section 14(1) in the particular facts of those cases. As distinguished from the facts of the present case the tenant in those cases had left Delhi for good to occupy the new residence outside Delhi without leaving behind him any member of his family to continue to occupy the premises in dispute. Ordinarily, therefore, those cases should have fallen under proviso (d) to Section 14(1). But the landlord may have chosen to bring the application for eviction in those cases without waiting for six months after the departure of the tenant from Delhi. Therefore, the application of proviso (h) instead of proviso (d) had to be considered in those cases. In a case in which the tenant does not leave behind him any member of his family to continue to occupy the premises, it may be said that the whole of the need of the tenant to occupy the premises is satisfied by the occupation of the new residence by him even though such new residence may be outside Delhi.
9. This is why the occupation of residence in Dalmia Nagar and in Jaipur by the tenants in the two cases decided by Dulat, J. and by me was held sufficient to attract proviso (h). It is only if the tenant or a member of his family continues to occupy the premises in Delhi even after the acquisition of another residence by him that the tenant can ask the court to consider whether the new residence acquired by him is such as to meet the same need which is met by the occupation of the premises by him. If, for instance, a tenant acquires a residence far away from the premises occupied by him then the tenant can legitimately continue to occupy the premises either by himself or by a member of his family and the court may come to conclusion that the acquisition of such a residence is not such as to forfeit the protection of the tenant to the occupation of the premises. In such a case proviso (h) would not be attracted. But when the tenant himself goes away with his family to occupy the new residence he cannot ask the court to consider his claim to keep the present premises also inasmuch as he has no need thereafter to keep the premises. In those circumstances the acquisition of a residence even far away from Delhi would attract proviso (h).
10. In the present case the acquisition of premises by the tenant at Jabalpur did not attract proviso (h) for the simple reason that the father of the tenant as a member of his family continues to occupy the premises and thereby proves the need of the tenant to occupy them. In the absence of such a member of the tenant's family occupying the premises, even the acquisition of the new residence at Jabalpur would have attracted proviso (h) to Section 14(1).
11. In the above circumstances, the appeal is allowed. The order of the Rent Control Tribunal is set aside and that of the Controller dismissing the petition of the landlord for the eviction of the tenant is restored. There will be no order as to costs.
12. Appeal allowed.
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